Ex-AfD MP Maier: right-wing extremist in the judiciary?

A constitutional state must guarantee the independence of its judges. But does he have to accept extremists as judges? This question is currently being asked in the case of ex-AfD MP Maier.

Jens Maier wants to go back – to the Saxon judiciary. The lawyer sat for the AfD in the Bundestag for four years. In the last election he was no longer able to win a client. Instead, he now wants to work as a judge again. His corresponding Application for return was received earlier this year.

The Deputies Act grants judges a right of return. But for the judiciary, a judge Maier could become a problem. The Saxon Office for the Protection of the Constitution classifies Maier as a right-wing extremist and assigns him to the officially dissolved “wing” around Björn Höcke.

In the past, Maier has repeatedly drawn attention to himself with right-wing extremist slogans. In 2017, when he was still an active judge, he called for the end of the German “guilt cult” in a speech, thereby downplaying the Holocaust. For this he traded a reference as a disciplinary measure. In 2019, already a member of the Bundestag, Maier was sentenced to pay compensation for racially insulting Boris Becker’s son Noah Becker in a tweet.

The legal scholar Andreas Fischer-Lescano speaks of a “dam burst” if Maier returns to the judiciary. “Here a man who has been declared an enemy of the constitution would become a judge by his own constitutional protection and as a judge he would have to protect and apply the constitution and that doesn’t go together,” he said in the daily topics.

High hurdles for judge indictment

One way to stop Maier’s return to justice would be to impeach the judge. It would be a novelty. There has never been a judge indictment in the Federal Republic. The statistics of the Federal Constitutional Court do not show a single entry.

It is provided for – by the Basic Law and most state constitutions. The point is to be able to reassign or retire or even dismiss judges who violate the principles of the Basic Law or the constitutional order of a federal state.

It is true that judges in Germany generally enjoy extensive freedoms so that their judicial independence is guaranteed. However, this freedom must find limits where a judge, whether in or out of office, openly opposes the Constitution.

This is where the instrument of the judge accusation comes in – it is a manifestation of militant democracy. In the case of Maier, the Saxon state parliament would have to request a judge’s indictment with a two-thirds majority. Ultimately, the Federal Constitutional Court would have to decide on this.

The hurdles for dismissal from service are high: it must involve massive attacks on the free-democratic basic order that reveal an aggressive, combative attitude.

What about a disciplinary action?

Disciplinary proceedings could be simpler than an indictment by a judge, because this does not require a two-thirds political majority. But here, too, the initiation of the procedure could fail – namely due to questions of jurisdiction. From the point of view of the Saxon Ministry of Justice, it should be operated by the court to which Maier is assigned as a judge. No proceedings can therefore be initiated before his return to justice.

The legal scholar Fischer-Lescano disagrees. He sees the Saxon Ministry of Justice as responsible. In exceptional cases, when there is no court to which the person is assigned, the ministry may very well intervene.

In addition: As a judge, the rule of moderation applied to Maier. So he had to refrain from expressing his opinions in public. During his time as a member of parliament, however, this judge’s duty was suspended. The extent to which any right-wing extremist statements by Maier as a member of parliament should be taken into account in disciplinary proceedings has not yet been legally clarified.

Not an isolated case

The Stuttgart Higher Regional Court had to decide on a similar constellation in March 2021 in the case of AfD politician Thomas Seitz. As a result, the court confirmed the dismissal of the man as public prosecutor because of anti-immigrant and Islamophobic publications on the Internet. With his statements, the lawyer seriously violated his duties of loyalty to civil servants. However, Seitz was concerned with statements made during his time as an active public prosecutor.

The legal scholar Fischer-Lescano sees the “impartiality of the judiciary and its loyalty to the constitution” at serious risk. If you don’t put up a “stop sign” in the Maier case, that would encourage other members of the judiciary to “further radicalize themselves, to continue to write excessive political assessments in judgments and decisions (…) where they have no business.”

A judge of the Giessen Administrative Court did this around 2019. In a verdict, he explained at length why the NPD election slogan “Stop the invasion: kill migration” was not incitement to hatred, but merely represented reality. The judgment had an aftermath: An asylum seeker rejected the judge as biased and was right at the Federal Constitutional Court: The detailed and clear positioning of the judge on the subject of migration justifies mistrust of his impartiality.